Claim
Claim:
- Constructive unfair dismissal
- Unpaid wages
- Not receiving holiday pay
- Not receiving bank holiday pay
Summary:
Ms Bogusz (Claimant) was contracted to work for Mr Nowak, owner of A&M Shop (Respondent) between October 2018 and August 2021.
- The Claimants contract was reissued at various points and further amendments made, all mutually signed, however all with differences between working hours and working pattern.
- The Claimant had illnesses which resulted in various periods of sickness absence throughout.
- During a previous sickness absence, the Claimant’s Line Manager said they would need to end her employment; and in her recent sickness absence, her return to work was delayed by the Respondent.
- Upon return, the Claimant met with the Respondent who notified her of termination of employment.
- The Claimant had received advice from JACS in preparation and proposed an offer to terminate employment on the conditions she was paid for her notice period and unpaid bank holidays.
- The Respondent agreed however later made a proposal by email that set out pay for notice and 1 week holiday pay, and that her lack of contact during sick leave qualified her for disciplinary dismissal and that she did not have a right to be paid for bank holidays, as well as other assumptions made.
- The Claimant rejected the points and put forward her proposal.
- The Respondent rejected this, saying his offer remained, and if she returns to work will be scheduled for a disciplinary interview in relation to a previous holiday whilst on sick leave.
- The Claimant was then signed off sick for stress and put in a claim to Tribunal which she withdrew due to wanting more time to consider the claim and accurately state the identity of the Respondent.
- The Claimant resigned due to a lack of correspondence and process as well as trust being broken.
- The Claimant filed her second claim.
Tribunal Judgment:
The claims were unsuccessful as the Claimant was unaware of the consequences of withdrawing her first claim in preventing her from bringing similar / further claims against the Respondent.
Had this not been the case, the respondent would have had to pay the claimant:
- 14 days’ pay for unpaid wages at £9.50 per hour for 6 hours a day (£798);
- 7 days’ holiday pay at £9.50 per hour for 6 hours a day (£399);
- £9 per hour for bank holidays until 31/03/22 and £9.50 per hour for bank holidays after; and
- £3,420 for unfair dismissal compensation (12 weeks’ gross based on normal working hours).
Lessons learnt:
Luck saved the Company circa £5,000. Don’t take luck for granted, protect yourself by:
- Ensuring clarity of wages by setting out the following in contracts of employment: Typical business full time working hours; employee working hours; and employee working pattern (check this correlates with their working hours).
- Making sure to have appropriate payroll checks to consider any potential changes to pay for leavers, for example to calculate pro-rated holiday entitlement due until termination date.
- Checking for public holidays and if your employee’s working pattern is set out over this day (or if as a rule they work this day); they should be entitled to this day off paid or if required to work, should be paid for their work done and receive Time Off In Lieu (TOIL).
- Ensure procedures and timeframes are clearly set out. It is best practice to complete a procedure before instigating another.